Proposed New Campus Sexual Misconduct Guidelines Would Strengthen Protections for the Accused

Campus sexual misconduct has long been a concern of university administrators, social activists, and politicians alike. This concern sparked a movement to strengthen the protection of victims of campus sexual misconduct. The zenith of this movement was probably reached in 2011 when the federal government’s “Dear Colleague” letter was delivered to over 4,600 schools.

The “Dear Colleague” letter advised colleges and universities of strengthened sexual misconduct standards that they would have to meet to remain eligible for federal aid. Although it was hailed by many as a landmark policy decision for the protection of victims of sexual misconduct, within a few years, many people had concluded that the pendulum had swung too far the other way. That men were being deprived of the right to defend themselves against sexual misconduct allegations.

Title IX: Both a Sword and a Shield

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Originally understood as a protection against overt gender discrimination, Title IX has come to be understood as a means to protect college women from sexual assault. Title IX has been asserted as the legal basis for the “Dear Colleague” letter, which is thought to have triggered a wave of expulsions of college men found guilty by campus tribunals applying lax standards of due process against defendants.

Defendants have been fighting back: Since 2011, over 150 federal lawsuits have been filed by male college students who were expelled for sexual assault. Many of these lawsuits have been successful. These students have been using Title IX on their own behalf, arguing that the school exhibited gender bias against them because they were male.

Change Is in the Air…

Despite successes in federal courts, defendants continue to complain that campus tribunals do not offer them a fair chance to defend themselves against sexual misconduct accusations. The current administration has responded by proposing the modification of the existing higher education sexual misconduct policy in a manner that strengthens protections for the defendant.

In particular, Education Secretary, Betsy DeVos (after having already made some significant changes), is preparing new rules that would not require Congressional approval to go into effect. Strictly speaking, these rules are not mandatory. Instead, the federal government would condition its educational funding on a school’s compliance with them. The following features stand out:

The definition of sexual harassment would be modified to equivalence with the definition currently used by the U.S. Supreme Court: “…unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity.” Under the previous administration’s definition, sexual harassment did not have to be pervasive or severe; in fact, it theoretically could be triggered by a single comment of a sexual nature directed towards the complainant.

The new rules allow schools to choose which of two possible standards of proof they will use: “preponderance of evidence” (which means something like “more likely than not”), or “clear and convincing evidence.” “Dear Colleague” rules require schools to use the “preponderance of evidence” standard.

Although both standards make it easier to prove a sexual misconduct allegation than the far more stringent “beyond a reasonable doubt” standard used in criminal proceedings, the “clear and convincing evidence” standard is a significantly higher bar to jump over.

Schools will be able to decide for themselves whether to allow an appeals process (the appeals process was encouraged by the previous administration). Schools that now allow appeals allow either party to appeal the result of a sexual misconduct investigation.

University jurisdiction over sexual misconduct cases will be limited to misconduct that was alleged to have occurred on campus. It will not include off-campus housing or anywhere else outside of campus boundaries. Local police and prosecutors will exercise exclusive jurisdiction to pursue off-campus complaints.

Schools will be responsible for investigating sexual misconduct only to the extent that a complaint has been filed or they have “actual knowledge” of the misconduct. Schools have been complaining that, up until now, they have been held liable for failure to investigate sexual assault claims they didn’t even know about.

Both parties (the accused and the accuser) would be entitled to all of the evidence gathered by the other side, regardless of whether the other side intends to actually use it.

Mediation between the two parties will continue to be an option, as it has been since 2017 (mediation was forbidden prior to 2017).

Both parties are allowed to question each other during disciplinary proceedings. This practice was formerly discouraged if not outright forbidden.

Regardless of whether these regulations end up going into effect as they are currently written, it remains a virtual certainty that the current administration will restore at least some of the protections for the accused that had been lost.

We Are Ready to Fight for You

At E. Stewart Jones Hacker Murphy, fighting for justice for the wrongfully accused is what we went to law school for. There is nothing more satisfying to us than to watch justice prevail due to our efforts, and we absolutely will not allow any of our clients to be bullied by the educational system.

The following is a list of only some of the local area colleges and universities whose students we have or are ready to serve:

Rensselaer Polytechnic Institute (RPI)

Siena College

Skidmore College

College of Saint Rose

Sage Colleges

Russell Sage College

Union College

Albany Law School

State University of New York at Albany

State University of New York at Binghamton

State University of New York at Plattsburgh

State University of New York at Potsdam

State University of New York at Oneonta

Clarkson University

Colgate University

Columbia-Greene Community College

Cornell University

Bard College

Vassar College

Syracuse University

Hartwick College

Utica College

Hamilton College

New York Law School

Contact Us Today

If you have been accused of campus sexual harassment or sexual assault, it’s not a good idea to wait until a tribuna has already been scheduled before you seek legal help. Contact us online, or call one of our offices (in Albany, Saratoga, Troy, and Latham) to schedule a free case consultation so we can discuss your options.

Proposed New Campus Sexual Misconduct Guidelines Would Strengthen Protections for the Accused was last modified: October 11th, 2018 by E. Stewart Jones Hacker Murphy

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